ST 274 of the Criminal Code of the Russian Federation.
1. Violation of the rules for operating means of storing, processing or transmitting protected computer information or information and telecommunication networks and terminal equipment, as well as rules for access to information and telecommunication networks, resulting in the destruction, blocking, modification or copying of computer information, causing major damage, is punishable a fine in the amount of up to five hundred thousand rubles or in the amount of wages or other income of the convicted person for a period of up to eighteen months, or correctional labor for a term of six months to one year, or restriction of freedom for a term of up to two years, or forced labor for a term of up to two years, or imprisonment for the same period.
2. The act provided for in the first part of this article, if it entailed grave consequences or created the threat of their occurrence, is punishable by forced labor for up to five years or imprisonment for the same term.
Punishment for violating the rules for operating computer information storage facilities
For committing a crime under Article 274 of the Criminal Code of the Russian Federation, various types of punishment are provided, both in the form of a fine and imprisonment.
For example, for violating the rules of access to information and telecommunication networks, if such violations led to the destruction of information and caused damage in excess of 1,000,000 rubles, the maximum penalty is imprisonment for up to 2 years, the minimum penalty is a fine of up to 500,000 rubles.
The maximum penalty for committing this crime is imprisonment for a term of up to 5 years.
Participation of a qualified computer crime lawyer in a criminal case under Art. 274 of the Criminal Code of the Russian Federation will allow you to avoid receiving the maximum punishment provided for in this article.
Commentary on Article 274 of the Criminal Code of the Russian Federation
1. The main object of a criminal attack is social relations that ensure the safety of the operation of computers, computer systems or their networks.
2. The subject of the attack is a computer, a computer system or their network.
3. The objective side of the crime is a violation of the rules for operating a computer, a computer system or their network, resulting in the destruction, blocking or modification of computer information protected by law, if this act caused significant harm (Part 1) or grave consequences (Part 2).
4. According to the legislative structure, the corpus delicti is material.
5. For destruction, blocking and modification of computer information, see paragraphs 5.5 - 5.7 comments. to Art. 272.
6. Violation of operating rules can be expressed in non-compliance, improper compliance or direct violation of the rules ensuring the safety of information and the integrity (operability) of computer equipment. Violation of the rules can be committed either by action or by inaction (failure by the offender to comply with the requirements enshrined in the rules).
7. The commented article does not contain specific technical requirements for the operation of computers and refers to instructions and rules defining the procedure for working on computers. The rules must be established by a specially authorized person or body and communicated to users, to whom the TOS applies for violation or non-compliance with these rules in accordance with Art. 274.
7.1. The network refers only to the internal network of a department or organization, which may be subject to the requirements of rules and regulations. The commented article applies only to crimes committed on local networks. It is not used in global networks such as the Internet.
7.2. We can distinguish two types of computer operating rules that should guide the activities of persons working with a computer, a computer system or their network. The first type of rules are instructions for working with computers and computer storage media, developed by the manufacturer of the computer and peripheral technical devices that are supplied with the computer. These rules are required for compliance by the computer user under the threat, as a rule, of loss of rights to warranty repairs and maintenance. The second type of rules are rules established by the owner or legal user of information resources, information systems, technologies and means of supporting them. They determine the procedure for using a computer, a computer system and a computer network, as well as other computer media <1>. ——————————— <1> See: Krylov V. Forensic problems of assessing crimes in the field of computer information // Criminal law. 1998. N 3. P. 88.
7.3. Rules can be established both by competent authorities and by computer manufacturers or software developers, as well as by the owner or legal user of a computer, computer system or their network.
7.4. Responsibility for violation of the rules can only arise if these rules were adopted properly (developed by specialists and signed by the head of the institution, department, etc.), fixed (usually on paper) and communicated to the user (usually under painting).
7.5. The rules may be contained in: regulations; departmental regulations; rules established in specific organizations; technical descriptions and operating instructions; instructions for using computer programs (the corresponding instructions can be attached both on paper and on computer media), etc.
7.6. The rules for operating a computer can establish both technical requirements (voltage, humidity, mechanical and chemical effects, device compatibility, electromagnetic field, etc.) and provisions governing work with software products (sequence of issuing commands or performing procedures, a ban on performing any operations with software, monitoring the compatibility of various software products, mandatory performance of certain procedures upon the occurrence of certain circumstances, etc.). And such activities as backing up information and using an uninterruptible power supply should be classified as organizational requirements for the security of computer information, since the requirements to comply with these rules depend on the characteristics of the activities of a particular organization.
8. The crime (Part 1) is completed (by elements) at the moment of destruction, blocking or modification of such a quantity of information or such information, the absence of which caused significant harm to the legitimate user or owner of the information.
8.1. The significance of the harm is an assessment category, and the determination of the amount of harm caused as a result of violation of the rules of operation of a computer, computer system or their network will be carried out by the court, taking into account the totality of available data.
9. The subjective side of the crime is expressed in the form of intent or negligence. In a qualified composition, two forms of guilt are possible.
10. In part 2 comments. Article establishes liability for violation of the rules of operation of a computer, computer system or their network, causing grave consequences through negligence.
10.1. The list of grave consequences, as well as significant harm, is not disclosed in the law. However, these should include the consequences indicated in the commentary. to Art. 273.
11. There must be a cause-and-effect relationship between a violation of the rules of operation of a computer, a computer system or their network and the consequences specified in the disposition: the destruction, blocking or modification of computer information must be a consequence of a violation of the rules of operation of a computer, and they, in turn, must be the cause the occurrence of significant harm or serious consequences.
12. The subject of a criminal offense is a sane individual who has reached the age of 16 and has access to a computer, a computer system or their network (special subject).
13. In order to bring a person to the Criminal Code, it is necessary to establish not only the fact that the perpetrator has access to a computer, computer system or their network, but also the fact (documented) that this person has undergone instruction or familiarization with the rules of operation of the computer, computer system or their network.
14. The acts described in part 1 belong to the category of crimes of minor gravity, in part 2 - of medium gravity.
“I hope the case doesn’t go to court”
Temirlan Yensebek's lawyer Zhanara Balgabaeva filed a petition for the return of equipment (a laptop, two phones and a modem) to the Almaty Police Department. The fact is that the phone from which the blogger published posts crashed; the young man sold the device itself for spare parts. It turns out that the gadgets that were seized are not related to the case. But the investigator issued a decision to refuse.
The crime scene is the city of Almaty, where the author of the public published posts, but the pre-trial investigation began in Nur-Sultan. The Almaty Police Department only conducted an interrogation and search.
The status of Temirlan Ensebek has not changed since May 15: he is a witness entitled to protection. There are no restrictions on travel, but the young man gave an undertaking to appear - this means that upon first request he is obliged to appear at the police department.
Temirlan Ensebek / Photo from Temirlan’s Instagram page
“I am now waiting for the results of the investigation. I hope that the case will not go to court, and I will safely fly to Georgia. I had been planning a work trip abroad for a long time, tickets were purchased, accommodation was paid for,” says Temirlan Ensebek.
Zhanar Balgabaev's lawyer believes that neither the Criminal nor the Administrative Code contains an article under which Temirlan Yensebek could be prosecuted, because he warned that fictitious news was published on the page.
The editors of the Factcheck.kz website and everyone who signed an open letter addressed to the head of the Ministry of Internal Affairs, Erlan Turgumbayev, never received a response from the country’s chief police officer. But human rights activists regard such a precedent as the story of Temirlan Ensebek, when a joke can be prosecuted, as a warning to all content creators: they say, anyone can be punished. This is facilitated by the fact that there is no official censorship in the country, but there is self-censorship that people who write have to rely on.
“I don’t plan to create a new public page - I’m no longer interested in it”
Temirlan Ensebek is 25 years old and comes from Almaty. Graduated from Wyższa Szkoła Biznesu – National Louis University in Poland with a degree in Public Administration. Since 2021, together with his wife, he has been organizing tours to Georgia.
“I was inspired to create a satirical public page by the news agency Panorama (Russian satirical news website - author). They also write humorous news on current topics. I realized that there was no such content in Kazakhstan, and I decided to try it,” says Temirlan Ensebek.
The young man previously played in KVN, wrote jokes, scripts, and went on tour to different cities. I have never worked as a journalist, but I would like to try it someday - I have interest in the profession. But I no longer wanted to write jokes.
“I don’t plan to create a new public page, I’m no longer interested in it. Now my priorities are my safety and my company. After a criminal case was opened, someone created several similar public pages on Instagram in support of me. I don’t know who the author and creator are, but I was pleased that this was done in my support,” admits the blogger.
He started the public in the first ten days of April. Doesn't remember the exact date. On April 30, the account was blocked. In just a couple of weeks, he became very popular - there were more than five thousand subscribers, and views on the page reached a million.
“The state has so-called red dots that cannot be touched under any circumstances”
The international journalism center MediaNet calls the situation around Temirlan outrageous. The director of the organization, Igor Brattsev, believes that the real reason for the blogger’s detention is that he violated unspoken rules - not to joke about certain people.
“The state has triggers, so-called red dots, which cannot be touched under any circumstances. If Temirlan had not written jokes about the First President, then with a high probability I can say that no one would have paid attention to his public page. If he had published other posts about power structures, akimats, with a high degree of probability, such a scandal would not have happened,” says Igor Bratsev.
Igor Brattsev / Still frame from youtube.com
From the point of view of a media expert, those who reacted to the joke in Temirlan Ensebek’s public page understand little about crisis communications. The guy’s detention further fueled public interest in the social network page and distrust of the authorities at the same time.
“Temirlan initially, in my opinion, created a post that absolutely did not deserve such a reaction. From the point of view of anti-crisis communications, the state performed poorly. They themselves drew attention to the public. People who did not know who Temirlan was became interested and began to watch, search, and spread information. Everyone started saying what the guy wrote,” says Igor Bratsev.
Human rights activists say that under Article 274 of the Criminal Code of the Republic of Kazakhstan, all distributors of fake news from the Qaznews24 public website can be prosecuted, which is more than a million people. These are the ones who reposted these humorous news, forwarded them on social networks. But if Temirlan Ensebek warns in his profile header that this is a joke and fake, then those who spread the information did not do this. According to Article 274, the dissemination of false information concerns not only the original source, but also everyone who published it further, which means they can come for anyone.
“All coincidences with people and events are an absolute coincidence”
On May 15, the author of the Qaznews24 public page, Temirlan Ensebek, was detained by police. On the same day, his home was searched and a laptop, two phones and a modem were seized. From 12 noon the young man was interrogated at the Almaty Police Department. All this time, activists, social activists and human rights defenders stood with posters in front of the DP building.
Activists at the Almaty traffic police building / Photo from azattyq.org
At 19.00 Temirlan came out and commented on what was happening: “On the page (public - author) it is written in black and white that all coincidences with people and events are an absolute coincidence, this is not real news, satirical content. I believe that I cannot be considered a criminal, a culprit in this case, because Article 274 is the dissemination of deliberately false information. I did not knowingly spread false information.”
He could not say anything more, since he signed papers on non-disclosure of investigation materials.
The same evening, the internal affairs authorities commented on the situation: “During the monitoring of social networks, we identified the Qaznews24 Instagram account, where fake messages were published on a regular basis. The information posted on this account caused a mixed reaction from society, as it misinformed the population and misled citizens.”
